60 N.Y.S. 658 | N.Y. App. Div. | 1899
This action was brought to recover a balance alleged to be due the plaintiffs, as surviving members of the firm of Herzfeld & Co., in making purchases and sales of stock for the defendant. The answer is substantially a general denial of the cause of action alleged in the complaint, and it also contains a counterclaim for alleged disobedience of the defendant’s orders in making the purchases and sales. The issues involved were sent to a referee to hear and determine, who after trial dismissed the complaint upon the merits, with costs, and the plaintiffs have appealed. During the progress of the trial numerous objections were made by the defendant to the admission of testimony, and the. plaintiffs objected to the granting of certain motions made by the defendant to strike out evidence which had theretofore been received without objections. After both parties had rested, plaintiffs moved to dismiss so much of the defendant’s answer as alleged a counterclaim upon the ground that no proof had been adduced to sustain it. The referee did not rule upon these objections or motions at the time they were made nor at any time during the trial, and his report fails to show that he ever passed upon them in any way. The evidence, concerning which the objections and motions were made, had a very material bearing upon the issues involved, and the failure of the referee to pass upon them before the close of the trial or to indicate in his report the disposition which he had made of them constitutes an error which requires a reversal of the judgment.
The method adopted by the referee in reserving his decision upon
Many other grounds of error are assigned, but, in view of the conclusion at which we have arrived, it is unnecessary to consider them.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered before another referee, costs to appellants to abide event.